The Brutus

STOKY, Circuit Justice. This cause has been argued with great ability on both sides. The questions involved in it are of considerable difficulty, and it is to be regretted, that so little light can be gleaned from authorities, to assist in the decision, which is now to be pronounced. We are called upon, in the first instance, to put a construction upon the shipping articles. These, like all other mercantile instruments, are drawn up in a very lax and inartificial manner. To construe the language by the technical rules of literal interpretation would be to defeat the manifest intention of the parties. We are, therefore, bound to construe it with great liberality, and to look to the general scope and object of the instrument, rather than to weigh minutely the force of detached expressions. “In conventionibus, eontrahentium vo-luntatem, potius quam verba, spectari pla-cuit.” S Poth. Pand. 825. It is argued, in behalf of the respondents, 1. That this was an engagement for a marine service limited solely by time; and that it was not even an engagement to cruise for three months, but simply to remain on board the ship three months. 2. That if it should be construed to be an engagement for a cruise, it was a cruise not measured by place, but simply by time; and that “cruise” ex vi termini, imports the period of time, during which a vessel is engaged on the ocean, for the purpose of making captures, without any return into port. To support the first position, great stress is laid on the stipulation of the officers and crew to repair on board, “and to remain for three months from the time of sailing, unless the cruise is sooner completed in the opinion of the owners.” But it is manifest, that the parties understood the engagement to be for the purposes of cruising. The prizes captured, “during the cruise” were to be divided in a certain ratio among the crew; and this certainly refers to prizes made during.the term of service of the crew. “The cruise” might be determined by the owners before the expiration of the three months; and how could this be, if the parties had not engaged for “a cruise”? Besides, if we were to adhere to a literal construction of these words, it would lead to the most singular incongruities. If it were a sufficient compliance with the stipulation “to remain” on board, how were the ordinary or extraordinary duties of cruisers to be performed? How were prizes to be captured and maimed out and navigated into port? So far, indeed, from its being the intention, that all the crew should “remain” on board, during the stipulated term, it was in the obvious contemplation of the parties, that a part were to leave the privateer and man prizes. For what other purpose could there be prize-masters on board? I cannot, therefore, but construe the contract to be for a cruise of three months, commencing from the departure of the privateer from the port of equipment; and such an engagement includes a liberty to cruise during the whole stipulated term. And this leads us to the consideration of what is the true meaning of the word “cruise,” as used in the connection, in which it stands in the shipping articles. By a cruise, I understand a voyage for the purpose of making captures jure belli. Lord Mansfield, in the case cited (Syers v. Bridge, 2 Doug. 527), has said, that it is a well known expression for a connected portion of time. This language is used with reference to a policy then before him, containing a “liberty to cruise six weeks,” which, it was contended, meant a cruising for six weeks not Inerely in succession, but at distant intervals, if the aggregate time did not exceed that space. His lordship is not, therefore, to be understood to assert, that a cruise ex vi termini includes a given portion of time, without reference to the place of commencement or termination, but only that it includes a connected portion or immediate succession of time, in whatever manner the same may be calculated. And this is true also as to a voyage. The boundaries of a cruise, like those of a voyage, may be defined by local limits, or by artificial time, or by both combined. It is just as competent to engage on a cruise from Boston to the East Indies and back again, as on a cruise for a year. It is true, that the term “voyage” is frequently applied to the passage of a ship from one defined port to another (Marsh. Ins. b. 1, c. 6, § 1); but it is also sometimes used with a more obscure reference to place, and with a direct limitation of time. Cases are familiar of an insurance for a limited time on a fishing voyage, or coasting voyage, or on any voyage or voyages, without any specification of place. 1 Emerig. Ins. c. 3, § 2, p. 63; Casar. Disc. 1, note 127; 2 Valin, Comm. 86, b. 3, tit. 6, art. 85; Casar. Disc. 67, note 31. In the same manner, an insurance may be on a privateer for a cruise, or for a cruise of a limited period. In short, a cruise is nothing but a voyage for a given purpose (see Brown v. Jones [Case No. 2,017]; Douglass v. Eyre [Id. 4,032]; Magee v. Moss [Id. 8,944]; 1 Hall, Law J. [N. S.] 207; Abb. — 495 — Shipp., 7th Lond. Ed. 1844, pt. 5, c. 1, p. 605), and may, therefore, be properly defined to be a cruising voyage, or voyage to make captures jure belli; and so it is clearly considered in our statutes (Act June 26, 1812, c. 107, § 10 [2 Stat. 761]). And a cruise, like a voyage, imports a definite place of commencement and termination, unless that construction be repelled by the context If seamen engage to go from a port on a fishing or whaling voyage, this includes, not merely the period, in which the vessel is engaged in the fisheries, but also the return voyage to the home of the vessel. This construction results by necessary implication, either from the known usage of the ordinary trade, or from a legal presumption of the intentions of the parties, made to obviate great inconveniences, or apparent absurdities. It is considered as a casus omissus, in which the law steps in, and in furtherance of the apparent objects of the parties, or of public policy, supplies the omission by a reasonable interpretation and extension of the contract in unforeseen emergencies. The same doctrine applies, in the same latitude, to a cruise. If no provision is made to the contrary, it must be presumed that a cruise comprehends a return to the country, if not to the home port, of the privateer. This is the ordinary usage of the employment, and the manifest expectation of the laws. It comports with the known policy of the country, which is unfavorable to the discharge of our seamen in foreign ports; and subserves the most important public, as well as private interests. I reject, therefore, altogether the definition of a cruise, which would strike out all reference to place in respect to its termini; and I further hold, in conformity with the language of the prize statute (Act June 26, 1812, c. 107, § 10 [supra]), that a cruise may still have a continuance, notwithstanding an arrival in port, and is not necessarily extinguished thereby, unless such inference result from the express stipulations, or the overt acts of the parties. It being then settled, that a cruise imports a return voyage to the country or port of the domicil of the ship, unless that construction be repelled by the context, we are next led to the consideration, whether in the present contract there be any thing to repeal that construction. The parties have limited the commencement of the cruise to the departure from the port of equipment; and from the facts it seems clear, that the cruise legally commenced on the first day of November, when the Brutus left Boston. I cannot adopt, in this respect, the opinion of the learned judge of the district court, postponing the commencement until the' departure from the port of Salem. That opinion seems to have proceeded upon the rule of a foreign ordinance (Ord. 1778, art. 21; 2 Emer. des Assur. c. 13, § 1, p. 10), which fixed the commencement of the cruise from the doubling of the capes, or points of usual departure. “Qu’il a double les caps ou pointes, qui suivant les usages locaux deter-minent un depart absolu.” 2 Emer. des Assur. 10. The general rule of our law, like that of the civil law (“In náutica pecunia, ex ea die periculum spectat creditorem, ex quo navem navigare conveniat.” 3 Poth. Pand. 826, note 1594), is that the voyage commences, when the ship breaks ground for the purpose of departure; and the parties have here expressly fixed it to the time of sailing. The term stipulated in the articles therefore expired, by its own limitation, on the first day of the ensuing February. If at that time the privateer had been in a port of the United States, in the ordinary • course of the cruise, it is incontestable, that the officers and crew would have been absolved from any further service. On the other hand, if the privateer had returned within the term, unless the owners had exercised the election given them, the articles would have subsisted in their full obligation. But it is argued by the plaintiff’s counsel, that the privateer having been forced into France for repairs occasioned by inevitable accidents, the whole time consumed there in necessary repairs is to be deducted from the account of the cruise. In other words, the running of the term is to be considered as suspended during that period. And they rely on the regulations of the French ordinances to support their position. Ord. 1693, art. 5; 2 Valin, Prises, 38; 2 Valin, Comm. 231; 1 Code des Prises, 147; Ord. 1778, art. 21; 2 Emer. des Assur. c. 13, § 1, p. 10; Ord. 1781, art. 21; 2 Code des Prises, 641, 920. These ordinances seem highly reasonable in themselves; but in the terms, in which they are conceived, they are rather positive municipal regulations, than evidence of the general maritime law. A class of cases more pointed to the purpose of the plaintiffs is that of licenses, granted during war to carry on an interdicted trade. There, it has been held, that if the license be for a limited time, and the party is prevented by superior force, or by the fury of the elements, from completing his voyage within it, he shall still be entitled to its protection. While the party is baffled by these obstructions, the intervening time is held, as it were, annihilated, and he is put again in possession of the time so lost. The Goede Hoop, Edw. Adm. 327. This construction is founded upon a large and liberal exposition of the intentions of the government, and in furtherance of a great national policy. But it will be difficult to show, that the same rule has ever been adopted either in the common or the maritime law in respect to civil rights, or contracts between citizens. The general principle of the common law is, that when a term of time begins to run against a party, it is not suspended by any intervening casualties. This doctrine is familiarly applied to statutes of limitation, — 496 — where no exception is admitted, unless it stand in the text of the statute book. It is also applied in relation to civil contracts upon time, where no excuse is allowed for non-performance according to the terms of the engagement. And a striking illustration of the same principle may be seen in the maritime law, where it is held, in an insurance on time, that no intervening accident suspends or enlarges the stipulated period of the policy (1 Emer. des Assur. c. 3, § 2, p. 63; 2 Emer. des Assur. c. 13, § 1, p. 5; Casar. Disc. 1, note 178; Id. 67, note 31; Poth. Assur. note 62; Ord. de la Marine, tit. 6, art. 34), and in the analogous cases of warranty to sail on a particular day, (Hore v. Whitmore, Cowp. 784; Marsh. Ins. b. 1, c. 9, § 4), and covenants in charter parties on time (Shubrick v. Salmond, 3 Burrows, 1637; Abb. Shipp. pt. 3, c. 1). The maxim, that an act of Providence shall work no prejudice to any one, has not. been supposed to apply to such cases, because each party might properly avail himself of the same shelter. As, therefore, in analogous cases, neither the common nor the maritime law affords any relief, and cannot be drawn in aid of the argument from the French code, I feel myself bound to adhere to the strict rule of the contract. “Lapso tempore, ex-tincta est materia obligationis, et conse-quenter obligatio, quia post tempus alia est materia alia res.” 2 Emer. des Assur. 8. As therefore, the fortuitous occurrences did not enlarge the term, or suspend the efflux .of its time, it follows that it expired, by its own limitation, on the first day of February. But the principal difficulty still remains. For, admitting that the term stated in the articles expired, it does not follow that the cruise, in legal contemplation,was determined. What effect a limitation of time engrafted on a contract for a cruise shall have, is a question of no inconsiderable moment and intricacy. Is it to be construed as forming a terminus of the cruise, altogether independent of the place where it elapses, as the respondents contend? or is it to be construed as a mere limitation of the time, in which the privateer is to be engaged in cruising, and of course, at the end of the term, to compel the parties to an immediate return home, as is maintained by the libellants? This is one of the turning points of the cause. If the doctrine of the respondents be well founded, it will follow, that after the lapse of the stipulated term, the crew may abandon the ship, or be abandoned immediately on the broad ocean, or in a desolate island. Let the event happen where it may, there vvill immediately ensue a complete dissolution of all authority, responsibility, and subordination, on board of the ship. There will be no longer officers or crew; for all parties will be equally, to all intents and purposes, functi officio. These would be mis-chiefs of a most enormous character, and it is impossible to believe, that reasonable men could ever intend that any contract of theirs should seriously receive an interpretation, that would lead to such a result. It may be said, that these evils could be of very rare occurrence. But the fact is, that from the very nature of the service, ani the dangers and difficulties, with which it is encompassed on every side, from the irresistible force and fury of the elements, as well as the vigilance and activity of the enemy, it would be impracticable, for the most prudent and cautious men, to guard against an overrun of the stipulated period. Nor is it any answer, that the common principles of humanity would forbid an abandonment of the ship or a refusal to perform the services necessary for her preservation; for, if such conduct were lawful, the parties could not be made responsible for any want of humanity in the exercise of their ordinary rights. From the very necessity of the case, therefore, the law must interpose, and put such a construction on the express stipulations of the parties, as common reason, and justice, and humanity dictate, and supply, from natural equity, such engagements, as the parties have indiscreetly omitted to state. What, indeed, upon the doctrine of the respondent’s counsel, are to become of prizes cap? toed after the stipulated period, if the ships be then at sea? Are they to be condemned to the government, as having been made by non-commissioned vessels? If there be no legál connexion between the officers and crew and the privateer, they could not be condemned to the captors, for the commission has no legal existence, when this con-nexion is completely dissolved. In short, there is no end to the diffieultiés and incon-veniencias of this interpretation. In the absence of all contrary stipulations, it is, in my judgment, in the highest degree reasonable to hold, that a contract for a “cruise” legally terminates in the country, to which the privateer belongs, and from which she derives her commission; and that, if a limitation of time be engrafted on the contract, it shall operate merely to ascertain and limit the time, which may be employed in actual cruising, and after that period require an immediate return to the port or country of origin, the forum domicilii navis, by the most convenient and direct route, without any deviation for the purpose of making captures. Every argument of public policy, and commercial convenience, and private interest, supports and fortifies this doctrine; and it coincides with the legislative policy, which has uniformly manifested itself in an extreme solicitude, as well in peace as in war, to recall our seamen to their native country. So strongly indeed do I think this construction to be founded in the real intention of the parties, that if the contract were expressly in terms “for a cruise of three months,” without any reference to place, I should hold it but a compendious and imperfec-t declaration of their object, and establish upon it — 497 — the same commentary, which I have already ventured to avow and vindicate. I have not, therefore, any hesitation in applying this construction to the articles now before the court I consider, that the parties have, in effect, stipulated, that the privateer might cruise three successive months from the time of sailing. After that period, it was no longer in the power of the commander or owners to prolong the voyage for the purpose of making captures; and wherever the privateer might then be, she would be bound to return to the United States; and any deviation on the homeward passage, for the purpose of cruising, would be a violation of the articles, entitling the injured parties to redress in damages. And all captures made in such homeward voyage would still be captures “during the cruise,” and distributable according to the regulations of the articles. Nor does the clause in the articles, giving the owners an option to determine the cruise at an earlier period, impugn or shake this interpretation. That clause did not, and could not, in the nature of tilings, be supposed to authorize the-owners to break up the cruise, when and where they should please to exercise an arbitrary discretion. It would be utterly unreasonable to suppose, that they might break it up upon tiie mid ocean, or on some uninhabited coast, and thereby expose the officers and crew to the most serious perils and oppressions. The clause was inserted with a very different aspect, to meet a practical difficulty, which often attended expeditions of this nature. It not unfrequently happened, that shortly after sailing upon the cruise, from the perils of the seas or the presence of a superior hostile force, privateers were compelled to enter some friendly port, or to return to their port of departure. Under these circumstances, it had become a subject of controversy, (though I presume not of any serious legal doubt,) whether the cruise was ended; and, as the seamen usually disposed of a large share of -their interests in the proceeds of the cruise, there was a strong temptation to avail themselves of the supposed uncertainty of the law. This was the real origin of stipulations of this nature, which had latterly, in some shape or other, been incorporated into most of the common shipping articles. The reasonable construction -of the clause is, that if the privateer should return into a port of the United States within the three months, the owners might, upon a full knowledge of all the facts, have an option to continue the cruise or not. And, therefore, whatever may be the rule as to other acts, this was necessarily a personal authority or confidence reposed in the owners at home, and could not be exercised by themselves, and much less delegated to any agent, to be exercised, at his discretion, in any foreign country. Upon the interpretation of the shipping articles, which we have now been considering, the cruse did not determine at Quim-per, on the first day of February, although the time for cruising did; but the cruise had a legal existence until the return of the privateer to the United States. I have not, in the preceding view of the case, thought it necessary to consider, what was the peculiar situation of the privateer at Quimper, at the end of the three months, because, if the respondents’ counsel were right in their reasoning, it became wholly immaterial, where she might happen to be; and, if they were wrong, it could, only be upon principles, which would stand unaffected by such considerations. In the remaining inquiry, the transactions at Quimper assume a very different aspect. It is argued, that the original cruise was, at that place, put an end to by the consent of all the parties in interest, and a new cruise substituted in its stead, and that the prizes made during this latter cruise, can with no propriety be referred back to the original articles. The engagement of parties to serve on board a private ship of war for a cruise, in consideration of a certain share of the prize money, constitutes a sort of partnership pro hac vice. Abb. Shipp. pt. 4, c. 1, p. 461; 2 Valin. Comm. arts. 32, 33, pp. 359, 392, &c. If the cruise be limited in time, the partnership cannot be dissolved during the term, unless by the consent of all the parties, for whose benefit the clause is inserted, or to whom, from the nature of the covenant, an implied or express authority for this purpose is reserved. In these respects, the same rule is applied, as in cases of ordinary partnerships. Wats. Partn. 381. There is no pretence, that the owners, in the present case, directly consented to the breaking up of the original cruise in France. It is very clear, that the commander had no express authority from the owners to form a second cruise. He declares, that he had authority to break up the first cruise in France, and convert the privateer into a letter of marque, and to return with a cargo to the United States, if he should deem it expedient. But in point of fact, he never acted under this authority; and the second cruise was substituted for the first under a supposed necessity resulting from a mistake of the legal rights of the parties. Was there then an implied authority resulting from the nature of the office of a commander, to break up the cruise, whenever in his discretion he should deem it expedient? We may put out of view all consideration of cases of extreme necessity, where, by analogy to other well known expectations, such an authority ought to be presumed (Hayman v. Motion, 5 Esp. 65; The Gratitudine, 8 C. Rob. Adm. 240; Reid v. Darby, 10 East, 143); for here no such necessity existed. Upon principle, it does not strike me, that any such general authority, as is contended for, can be supported by implication. The commander is appointed for a single cruise, and must be deemed to — 498 — have all the powers necessary and proper to accomplish the purposes of that cruise. But a power to break up a cruise can never be implied from a power to perform it; nor a power to institute a new cruise from an appointment to superintend and direct the operations of an existing cruise. There is a case put by Bynkershoek (Q. J. P., Dupon. Ed., c. 18, p. 141) which completely establishes a similar doctrine. The question was, whether the commander of a privateer had an implied authority, during the cruise, to enter into engagements with other cruisers to cruise and make captures on joint account. And this great civilian holds, that no such authority could be implied from the nature of the office, or of the service. That was a stronger case in favor of the commander, than the present; and yet the opinion of Bynkershoek seems founded in solid reasons; for the act of the master was, in effect, the establishment of a new partnership and of new interests in the cruise. Nor is any public policy promoted by establishing such an implied authority. It would offer temptations to unnecessary hazards and new enterprises, beyond the control and superintendence of the owners; and make it for the interest of seamen, who had parted with their shares, to create impediments in the voyage, and indirectly compel the commander to engage in new stipulations for new adventures. If indeed the commander have such an implied authority to engage in a new cruise, he must have a like authority to purchase new outfits and to vary the whole stipulations of the contract, and the division of the prize money; and thereby may involve the owners in great risks and expenses, without securing to them any adequate remuneration. In every view, in which this subject can be contemplated, there seem strong reasons for rejecting the doctrine, which would raise so broad a superstructure of implied powers upon so narrow a foundation. I remain of the opinion, that the stipulations for a second cruise, being unauthorized by the owners, were originally invalid; and if they have been subsequently ratified, this ought not to affect third persons, whom they did not in the first instance bind. In the case at bar, some of the libellants were separated from the ship, and put on board of prizes, to navigate them into port. This was a most meritorious service for the common benefit; and they are entitled to share in all prizes subsequently made during the cruise, in the same manner, as if they had remained on board; and it was not competent for the other parties, by any acts or agreements, to devest this original right. In respect to these persons, therefore, the breaking up of the cruise at Quimper (supposing it good as to all other parties) was not a binding act. They might still claim their shares of all prizes subsequently made, until the original cruise was legally determined by the return of the privateer to the United States; for, in a prize court, it can never be permitted to set up a tortious proceeding as a protection against vested rights. And, in asserting this rule, I do nothing more, than follow up a principle long since established in the highest prize tribunal of this country. Keane v. The Gloucester, 2 Dall. [2 U. S.] 36. The remaining question is, whether the same doctrine can be applied, as between the assignors and assignees. There is no doubt, that, by the assignment, a legal interest passed in all prizes captured during the cruise, which should be condemned to the captors. Morrough v. Comyns, 1 Wils. 211. But the point of difficulty is whether the act. of putting an end to the cruise at Quimper is to be deemed utterly void, so as to bring the subsequent captures within the language of the assignment; or whether the parties are to be left to a common law remedy for damages on account of this unlawful deviation from the contract. The argument on one side is, that the assignees are not to be prejudiced by the tortious acts of their assignors in breaking up the cruise; and on the other side, that as the cruise was broken up, by right or by wrong, the assignees cannot claim any share of the prizes subsequently captured, for they were not captured “during the cruise,” on which the privateer was originally bound. The assignees must be presumed to have had full knowledge of the. original shipping articles, and consequently of the nature and extent of the cruise. They were put upon the inquiry by the very terms of the assignments, and if they waived the inquiry, they must now be bound by all the qualifications and conditions originally interposed by the parties. Nothing, therefore, can be drawn in aid of their pretensions from this source; and the attempt of the counsel for this purpose must utterly fail. It is a sound principle of natural justice, as well as law, that no man shall take advantage of his own wrong. This maxim will be found in the codes of all civilized nations; though the manner in which it is applied for the purposes of justice, must depend upon the municipal regulations and remedies of each particular country, and the courts, in which the same are enforced and administered. A court of admiralty is not bound by the narrow and technical distinctions of common law proceedings. It has an enlarged and liberal discretion, and may decree ex aequo et bono, upon principles of equity and good conscience. It will, therefore, sometimes consider that as done, which ought to have been done, not by decreeing a specific performance, but by placing the parties in the same situation, as if there had been such performance. Thus, if a mariner be wrongfully dismissed from service during the voyage, wages will be decreed in the same manner, as if he had served to its successful conclusion. It may, in like manner. — 499 — •convert a wrong-doer into a trustee for the benefit of the rightful owner, as even a court •of common law sometimes does by a waiver •of the tort If it may decree thus, silting as an instance court, a fortiori, it may apply the most large and liberal equity, when sitting as a court of prize, and emphatically administering the law of nations and the general principles of civil justice. It is peculiarly fit under such circumstances, that it •should entertain the rule, that the wrongdoer shall not profit by his own unauthor-ised act; and give the fruits to those, who, if they have not labored in the field, are in equity entitled to the harvest. I am, therefore, prepared to assert, that the assignees ought, upon principles of public policy, to be let in to share in the prize proceeds now in the custody of the court. The prizes were captured, while the privateer was sailing under the commission, by virtue of which the original cruise was undertaken, and condemnation to the captors sought and obtained; and that cruise was not, in point of law, extinguished. On the whole, I affirm the decree of the ■district court; but I shall order the whole costs and expenses on each side to be a charge on the prize proceeds. It was impossible to settle the account of any of the parties, until this question was decided.